Child Representation in Custody Cases

 Posted on September 03, 2014 in Child Custody

A divorce situation can be very stressful and couples often struggle with the various aspects of divorce, especially when they have children. Even the most well-intentioned parents may have serious, and sometimes contentious, disagreements on what is best for their children. In these instances, attorney representation for each spouse may not be sufficient. Fortunately, Illinois law permits the court to appoint a third party attorney to assist through any process related to the welfare of a child, including custody, visitation, support and education.

On its own or as a result of a request by any party involved, the court may assign the attorney to serve in one of three roles on behalf of the child. Each role carries specific expectations and obligations, and the decision to appoint one over the others is based on the unique requirements of each case.

Attorney for the Child

Although the provision exists for the court to appoint an attorney for the child, it is not often exercised. The child's attorney provides legal counsel and represents the explicit wishes of the child in negotiations and before the court, just as he or she would for an adult client. In many cases, however, a minor child may have difficulty defining his or her needs and wishes to the independent attorney, and those wishes may not reflect the child's true best interests. A child's attorney, however, would be required to advocate the child's position, regardless of appropriateness or long-term consequences. Also, as with an adult client, the attorney may need to relay details and outcomes of legal proceedings to the child, likely exposing the child to testimony and information best left between the spouses.

Guardian ad Litem

If appointed, a guardian ad litem (Latin: for the suit) serves as both an advocate for the child and resource for the court. An attorney in this position is expected to investigate the facts of the case, speak to all parties involved, and come to a conclusion as to the child's best interests. The guardian ad litem is an attorney trusted by the court to prepare a report based on his or her findings which are then submitted as testimony or in writing. The law also allows the guardian ad litem to be called as a witness for cross-examination regarding his or her findings. Since the role requires him or her to compile information and provide independent testimony, the guardian ad litem is a direct participant in the case, rather than simply an advocate or counsel.

Child Representative

Combining some of the responsibilities and expectations of a child's attorney and guardian ad litem, a child representative may be deemed appropriate by the court. A child representative is required to investigate the facts of the case, much like the guardian ad litem, and establish what he or she believes to be in the best interest of the child. The representative does not testify or submit a recommendation to the court as a matter of testimony; instead he or she is expected to represent that position in litigation or settlement discussions as any other attorney would represent their own client. The representative must adhere to the provisions of the law pertaining to training, experience and procedure, which are more extensive than those of the child's attorney or guardian ad litem.